Fiji Court of Appeal holds 1997 Constitution still in force
Read the summary of the decision
Download the full Appeals Judgement (PDF 148KB)
Introduction
The Fiji Court of Appeal this afternoon dismissed the Interim Government's appeal in the case of Chandrika Prasad v The Republic of Fiji and The Attorney General. The effect of this is that the 1997 Constitution, purportedly abrogated by the Republic of Fiji Military Forces in May 2000 is still in force and the supreme law of Fiji.
In a short summary of the decision, the Court's President, Sir Maurice Casey, announced that the five-member Court had unanimously made the following declarations-
(i) The 1997 Constitution remains the supreme law of the Republic of The Fiji Islands and has not been abrogated.
(ii) Parliament has not been dissolved. It was prorogued on 27 May 2000 for six months.
(iii) The office of the President under the 1997 Constitution became vacant when the resignation of Ratu Sir Kamisese Mara took effect on 15 December 2000. In accordance with section 88 of that Constitution, the Vice-President may perform the functions of the President until 15 March 2001 unless a President is sooner appointed under section 90.
The Reasoning
The Court of Appeal held that the legal doctrine of "necessity" could validate only those unconstitutional actions which were necessary to temporarily preserve law and order, but could not justify the abrogation of the Constitution.
The Court also accepted that, in principle an otherwise illegitimate government could acquire legality by exercising control over the state with the acquiescence of the people. However it found that while the ICG had firm control, there was insufficient proof that the people of Fiji acquiesced in that control, especially in light of the restraints on protests and free expression under emergency legislation.
What Now?
While it is clear that the Parliament must be summoned immediately, the summary did not address the question of where executive control lies at present.
The decision makes it untenable for Ministers of the Interim Civilian Government who have publicly pledged to respect the decision, to remain in office. However, it remains unclear whether
• they are to be replaced by Ministers of the People's Coalition Government who were purportedly dismissed by Ratu Kamisese Mara at the height of the hostage crisis in May 2000 or
• pending their replacement the Acting President holds executive power exclusively by virtue of the state of emergency declared by the former President, Ratu Sir Kamisese Mara, under the 1997 Constitution before the Military stepped in.
• a new government is to be formed from among the existing members of Parliament.
Under the 1997 Constitution, the Prime Minister is the person who commands the confidence of the majority of members of the House of Representatives. Under the 1997 Constitution, the position of Prime Minister is an extremely powerful one. The Prime Minister must be consulted on the appointment of the President; the Prime Minister can "advise" the President to dissolve of Parliament (on which advice the President must act). It appears from recent news reports that Mr Chaudhry has advised the President that there should be a dissolution.
The consensus of legal opinion appears to be that unless or until there is a confidence vote in the House of Representatives, the People's Coalition Government is the lawful government and Mr Mahendra Chaudhry, its leader, is the lawful Prime Minister.
Also available on this website is the Fiji Court of Appeal's four-page summary of its decision and the full text of its decision. We have also prepared a separate Legal Alert on the Legality of Government Action since 29 May 2000.